ELRC948-21/22LP

ARBITRATION AWARD

ARBITRATION DATE: 30 MAY 2023
CASE REFERENCE: ELRC948-21/22LP

IN THE MATTER BETWEEN:

APPLICANT: MATHEBULA RAYNECK

And

1ST RESPONDENT: DEPARTMENT OF EDUCATION-LIMPOPO
2nd RESPONDENT: MKANIS PHINDILE GETRUDE

DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing into an alleged Unfair Labour Practice, referred in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended was held and finalized at The Department of Education-Limpopo, Cnr Hospital and Hans Van Rensburg Street, Polokwane on 17 May 2023.
2. Both parties attended the proceedings. The applicant was represented by Monyepao Kgatla, an attorney from Tshikovhi Inc Attorneys, while the 1st and 2nd respondent were both represented by Mr N.E Nyathela.
3. Prior to the commencement of arbitration, the parties submitted signed Pre-Arbitration minutes.
4. The hearing was held in English and was digitally recorded.

ISSUES TO BE DECIDED
5 Whether or not the decision of the 1st respondent not to promote the applicant was substantively and procedurally fair. If not, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.
BACKGROUND TO THE ISSUES
6. The applicant is employed by the 1st respondent as a departmental head at Kulani Primary School. The 1st respondent advertised a position of deputy principal at Kulani Primary School and both the applicant and the 2nd respondent applied, shortlisted and interviewed. The 2nd respondent was eventually appointed to the position with effect from 01 January 2022. The applicant viewed the appointment as procedurally and substantively unfair and seek to be appointed to the position retrospectively from 01 January 2022.
7. Prior to the commencement of the arbitration, the 1st respondent and 2nd respondent submitted a bundle of documents marked “B”, while the applicant submitted a bundle of documents marked “A”.

8. The applicant closed his case after leading his own evidence, while both respondents closed its case after leading the evidence of one witness.

9. Both parties submitted written closing arguments on an agreed date and were considered.
SUMMARY OF THE EVIDENCE AND ARGUMENTS
10. Following is a summary of only the relevant evidence submitted by the witness under oath and which was taken into account in order to arrive at a decision in the matter.
THE APPLICANT’S CASE
11. The employee, Rayneck Mathebula, testified that after the interview, the interviewing panel and the SGB ranked first, while the 2nd respondent was ranked second and third respectively. He has been a head of department (HOD) at the school for eleven (11) years and manages eight (08) teachers. Before his appointment as a HOD, he was a SC1 educator. As a SC1 educator, he was managing the class. He has 15 years teaching experience. The 2nd respondent’s curriculum state that during 1997 and from 2019 until she was appointed to the position in question, she was managing nutrition but it does not mention if she ever managed any curriculum or educators. Currently he is teaching Grade 7 mathematics and Grade 4 English. Kulani Primary School SGB wrote a letter to the department raising their concerns/unfairly treatment regarding his non-appointment to the position in question. During 2021, the department issued a circular (Circular150 of 2021) detailing the employment equity profiles of principals, deputy principals and head of departments. However, the department acted against circular 150 of 2021 when appointing/filling certain vacancies. The Department appointed African males in the positions of deputy principals even though the circular indicated that African males are over-represented in the position while African females were under-represented. According to the recommendations of the district director, the SGB recommendations and ranking were rejected because it is alleged that it was not supported in line with Employment of Educators Act (EEA) section 6(3)(b) and section 7(1) and that the 2nd respondent was recommended to be appointed to the position based on her performance during the interviews. After the recommendation of the SGB was rejected, the governing body concerned were never requested to make another recommendation for the consideration by the Head of the Department as required by Chapter 3 of EEA section 6(3)(c). The Collective Agreement 3 of 2016 (para 35), provides that a recommendation by a school governing body is an essential prerequisite for the promotion of an educator by the Head of Department and without such recommendation the promotion is ultra vires and unlawful. The appointed of the 2nd respondent was unlawful in that the recommendation of the SGB was not considered. As an HOD, he possesses the necessary skills for the position, while the 2nd respondent does not possess the same level of skills. In appointing the 2nd respondent, the Head of Department never placed significant weight on the recommendation of the SGB who has interviewed the candidate.

12. Under cross-examination, Rayneck Mathebula, testified that the 2nd respondent is currently not reporting at Kulani Primary School because the community is against her appointment and that they are of the opinion that he was supposed to have been appointed to the position because of what he has done for the school. He was given a fair opportunity to compete for the position. He was never formally appointed as a deputy principal and beside the submission by the SGB, there is no supporting evidence/proof to support the SGB’s claim that he was running the school in the absence of the principal. As a senior teacher, the 2nd respondent was performing the duties of departmental head and she was also mentoring educators and managing curriculum. He does not dispute that the 2nd respondent has sound managerial skills. He never went to a community radio station together with some members of Kulani Primary School SGB to challenge the appointment of the current school principal. Teaching is a professional matter and only the principal can comment on the aspect and SGB is only responsible for governance. The SGB commented on his professional matters because they know his capabilities. He believes that he was supposed to have been appointed to the position because he scored the highest during the interviews, because of his skills and the recommendation of the SGB. Collective Agreement 3 of 2016 (para 43) provides that when making an appointment, both qualifications and experience as recorded in the curriculum vitae submitted by candidates together with performance during the interviews must be taken into account and that it is irrational to make an appointment purely based on performance during the interviews or to reason that the experience and qualifications become irrelevant after shortlisting. The 2nd respondent is more qualified and competent than him. She also have the same number of years as an educator as him. There is no general right to promotion and the right of the employee is to be fairly considered for promotion when the vacancy arises. In terms of the 1st respondent’s employment equity profiles of deputy principals, African males are over-represented while African females are under-represented. At Kulani Primary School, the gender is balance since the principal is a female and the Head of Department is a male. In other schools, the Department did not consider the employment equity profiles when making certain appointments. The Collective Agreement 2 of 2020 (para 44) provides that the Head of Department must place significant weight on the recommendation of the SGB who has interviewed the candidates and the employer is not bound by the recommendation of the SGB and may deviate from their recommendation where there are sound reasons for doing so. He was never interviewed by the SGB. The Head of Department has acted in bad faith by not appointing him to the position in question because it is alleged that he is always challenging the appointment of senior management at Kulani Primary School. He was once shortlisted and interviewed for a position of deputy principal at a different school but he never challenged his non-appointment.
THE EMPLOYERS’ CASE
13. The employers’ witness was Sam Nyiko Sono. He testified that one of his responsibilities is to advice the Head of the Department on policies and procedures when making appointments. At Ndambi High School, two males were appointed in the positions of principal and deputy principal despite that African males are over-represented in the two positions because the school is a performing school and the two males are teaching the most important subjects which is mathematics and science. At Dzumeri Primary School, male deputy principal was appointed to balance the composition of the school management team (SMT) since two females and one male were in the system. At Ukuthula Primary School, a male deputy principal was appointed because the SMT consist of three females. A senior teacher plays a role like that of the HOD. At Khulani Primary School, the 2nd respondent was appointed in line with circular 150 of 2021. The SGB is recommendations is just a wish list and being scored position one in the interviews is not a single factor to determine the appointment. When appointing the 2nd respondent, the HOD never rejected the SGB recommendations but deviated. The SGB is only responsible with the governance of the school and the appointment of educators is the responsibility of the HOD. Khulani Primary School SGB is conflicted in that they wanted the applicant to be appointed to the position and no one else. After the appointment of the 2nd respondent, the community protested against her appointment and she currently reporting at a different school.

14. Under cross-examination, Sam Nyiko Sono, testified that the SGB of Khulani Primary School refused to make a second recommendation in line with section 6(3)(c). A senior teacher position is not advertised but is at the same level as the HOD. Teaching a subject is part of curriculum management. The 2nd respondent was appointed to the position because of her qualifications, experience and to comply with circular 150 of 2021. The SGB does not recommend one candidate. At Ndambi High School males were appointed to maintain the performance of the school and that the principal has to have mathematics and science. At Dzumeri and Ukuthula Primary Schools, the males were appointed because the SMT consisted of females. At Khulani Primary School, the principal is female and the HOD is the applicant. The 2nd respondent was appointed to the position because African females are under-represented in the position of deputy principal.
ANALYSIS OF EVIDENCE AND ARGUMENTS
15. In Buffalo City Public FET College v CCMA and other (P0372/12) (2016) ZALCPE 18 it was held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he/she is a suitable and better candidate for the position in question.

16. In his evidence in chief, the applicant submitted that he is a suitable and better candidate for the position in question because he was scored the highest by the interviewing panel, that the SGB recommended him as the first preferred candidate and that he is more experienced than the 2nd respondent.

17. It is common cause that the 2nd respondent is more qualified than the applicant. During cross-examination the applicant conceded that the 2nd respondent has the same number of years as an educator as him. He also conceded during cross-examination that as senior teacher, the 2nd respondent was performing the same duties as the departmental head, she possesses sound managerial skills and she was also mentoring educators and managing curriculum. Therefore, the applicant failed to show that he was better equipped than the 2nd respondent in terms of qualifications and experience as required by paragraph 43 of the collective agreement 2 of 2020.

18. The applicant relied heavily on his performance during the interviews and that the SGB recommended him as the first preferred candidate to challenge the 1st employer’s decision not to appoint him. Paragraph 43 of the collective agreement 2 of 2020, provides that when making an appointment, both the qualification and experience as recorded in the curriculum vitae submitted by candidates together with performance during interviews must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications as contained in curriculum vitae become irrelevant after shortlisting. The 1st respondent’s decision not to promote the applicant solely on his performance during interviews was not based upon a wrong principle or bad faith as suggested by him.

19. Paragraph 44 of the collective agreement 2 of 2020, further provides that the Head of Department as employer must place significant weight on the recommendation of the school governing body who has interviewed the candidates. The employer is however not bound by the recommendation of the school governing body and may deviate from their recommendation where there are sound reasons for doing so. During cross-examination, the applicant conceded that he was not interviewed by the school governing body. In terms of paragraph 44, the Head of Department must only place significant weight on the SGB recommendation if they have interviewed the candidates.

20. It is the 1st respondent contention that the recommendation of the SGB were considered but the Head of Department chose to deviate from their recommendation with sound reason. The 1st respondent’s undisputed submission that the SGB refused to submit another recommendation as required by section 6(3)(c) of EEA, appeared very convincing. From the letter dated and signed by Khulani Primary School SGB on 20 December 2021, it is clear that the SGB concluded that the applicant was the only suitable and better candidate for the position in question despite that they have recommended two other candidates for appointment, including the 2nd respondent. The 1st respondent’s reasons for appointing males in positions of principal and deputy principal at different schools despite departmental circular No 150 of 2021, is accepted. The applicant failed to adduce any evidence to suggest that circular 150 of 2021 was used to hide the 1st respondent discriminatory, bad faith and biased manner. In terms of circular 150 of 2021, Africans females are under-represented in the positions of principals and deputy principals. Appointing an African female at Khulani Primary School, was justified under the circumstances. In Cape Town City Council v Masitho and other (2000) 21 ILJ 1957 (LAC), the Court dealing with historical inconsistency held that an Employer cannot be expected to continue to repeat a wrong decision in the name of consistency.

21. Having analysed the evidence submitted, I have come to the conclusion that the applicant failed to prove on balance of probabilities that he is a suitable and better candidate for the position in question.
Award
22. The respondent did not commit an unfair labour practice relating to promotion when they did not appoint the applicant,

23. The applicant’s application is hereby dismissed.

NICHOLUS MASINGITA SONO
COMMISSIONER
30 May 2023